Counter-terrorism and national security legislation reviews: a comparative overview

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RESEARCH PAPER SERIES, 2014–15 7 AUGUST 2014

Counter-terrorism and national security legislation

reviews: a comparative overview

Cat Barker

Foreign Affairs, Defence and Security

Executive summary

• Since September 2001, successive Australian governments have enacted a series of significant legislative reforms to update national security laws and bolster Australia’s response to potential terrorist threats. These laws have been the subject of several statutory and other reviews since their enactment.

• The Government is in the process of considering and responding to the recommendations of major reviews completed between 2012 and 2014. It introduced a Bill to implement the first part of its response in July 2014, and announced a range of further reforms in August 2014. This Research Paper provides a brief overview of the key legislative reviews, followed by a more detailed comparison of the most recent reviews and, where relevant, some earlier reviews. It also provides information on how governments have responded to review recommendations.

• The reviews of the Independent National Security Legislation Monitor (INSLM) (2012–2014) and the Council of Australian Governments (COAG) Review Committee (2013) have come to several of the same conclusions, the most significant being that preventative detention orders should be abolished. Other areas of agreement are the express inclusion of hostage taking in the definition of a terrorist act, the exclusion from that

definition of acts committed during an armed conflict that is governed by international law, repeal of the offence of financing a terrorist, and an amendment to the offence of incursion into a foreign State to engage in hostile activities.

• These two reviews, however, took contrasting views on control orders. The INSLM recommended they be abolished and the COAG Review Committee recommended they be retained but that the legislation be significantly amended to provide additional safeguards and protections. They also made contrasting recommendations in relation to the offence of associating with terrorist organisations.

• Several of the recommendations made by the INSLM and the COAG Review Committee either accord or contrast with those of earlier reviews conducted by the Parliamentary Joint Committee on Intelligence and Security between 2005 and 2013 and the Security Legislation Review Committee, which reported in 2006. Areas of agreement include:

– introduction of an authorised intelligence operations scheme under which Australian Security Intelligence Organisation (ASIO) officers would be protected from criminal and civil liability for certain conduct – amendments to facilitate cooperation between ASIO and other intelligence agencies

– postponing the commencement of terrorist organisation listings until after the parliamentary disallowance period has expired

– amendments to the definition of terrorist act and

– amendments to several of the terrorist organisation offences. ISSN 2203-5249

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Introduction

Following the events of 11 September 2001 in the United States and the subsequent United Nations Security Council Resolution 1373 (2001), the Australian Government, in cooperation with the states and territories, embarked on a series of significant legislative reforms to respond to the threat of terrorism.1 The reforms included special powers for the Australian Security Intelligence Organisation (ASIO), a range of new offences and the introduction of a mechanism for the proscription of terrorist organisations.2 The London bombings in July 2005 prompted further reforms, including the introduction of the control order and preventative detention order regimes and additional police powers in relation to suspected terrorism offences.3 Given the extraordinary nature of the new powers granted and the reach of the new offences, which were designed to capture conduct in the early preparatory stages, the relevant legislation required that reviews be undertaken at certain junctures. In addition, the office of Independent National Security Legislation Monitor (INSLM) was established in 2010 to provide ongoing oversight of Commonwealth counter-terrorism and national security laws.4

Accordingly, there have been several significant reviews of Australia’s counter-terrorism and national security legislation, the most recent and comprehensive being those of the INSLM and the Council of Australian Governments (COAG) Review Committee.

The Government is now embarking on a further series of national security reforms, the first part of which is contained in the National Security Legislation Amendment Bill (No. 1) 2014 (the Bill), introduced in the Senate on 16 July 2014.5 The Bill responds to recommendations on legislation governing the Australian Intelligence

Community (AIC) made by the Parliamentary Joint Committee on Intelligence and Security in 2013.6 The Attorney-General has stated that the Bill is ‘just the first step’ and indicated that the Government would introduce further legislation to both respond to recent reviews and proactively address any other shortcomings it identified.7 On 5 August 2014, the Government announced it would soon be introducing further reforms to, among other things, remove sunset provisions from a range of legislation, expand the criteria for the

proscription of terrorist organisations, lower the threshold for arrest without warrant for suspected terrorism offences and enable requests for the suspension of passports in certain circumstances.8

This Research Paper provides a brief overview of key reviews of counter-terrorism and national security legislation, followed by a more detailed comparison of the recommendations of the INSLM and COAG reports with each other and, where relevant, those of earlier reviews. It also provides information on how governments have responded to review recommendations.

1. UN Security Council, Security Council resolution 1373 (2001) [on threats to international peace and security caused by terrorist acts], 28 September 2001, S/RES/1373 (2001), accessed 21 July 2014.

2. The Government’s initial legislative response comprised the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, Border Security Legislation Amendment Act 2002, Criminal Code Amendment (Anti-hoax and Other Measures) Act 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002, Security Legislation Amendment (Terrorism) Act 2002 and the Suppression of the Financing of Terrorism Act 2002 (all accessed 21 July 2014).

3. Key measures were included in the Anti-Terrorism Act (No. 2) 2005 (accessed 21 July 2014). For an overview of other relevant legislation enacted since September 2001, see G Williams, ‘A decade of Australian anti-terror laws’, Melbourne University Law Review, 35(3), 2011, pp. 1136–76 (accessed 21 July 2014).

4. Independent National Security Legislation Monitor Act 2010 (INSLM Act), accessed 21 July 2014; Revised Explanatory Memorandum,

Independent National Security Legislation Monitor Bill 2010, p. 1, accessed 21 July 2014.

5. Parliament of Australia, National Security Legislation Amendment Bill (No. 1) 2014 homepage, Australian Parliament website, accessed 21 July 2014. The Parliamentary Library is in the process of preparing a Bills Digest for this Bill.

6. Parliamentary Joint Committee on Intelligence and Security (PJCIS), Report of the inquiry into potential reforms of Australia’s national security legislation, Parliament of Australia, Canberra, May 2013, accessed 15 July 2014.

The term Australian Intelligence Community refers to six security and intelligence agencies: ASIO, Australian Secret Intelligence Service (ASIS), Australian Signals Directorate (ASD, previously Defence Signals Directorate), Australian Geospatial-Intelligence Organisation (AGO, previously Defence Imagery and Geospatial Organisation), Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA). 7. G Brandis, ‘Second reading speech: National Security Legislation Amendment Bill (No. 1) 2014’, Senate, Debates (proof copy), 16 July 2014,

pp. 65–68, accessed 21 July 2014.

8. T Abbott (Prime Minister) and G Brandis (Attorney-General), New counter-terrorism measures for a safer Australia, media release, 5 August 2014, accessed 5 August 2014.

Counter-terrorism and national security legislation reviews: a comparative overview 3

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Summary of key reviews

Independent National Security Legislation Monitor

Reports: 2012–2014.

Government response: The Government is yet to respond to formally respond to these reports. As noted in the

Appendix, the National Security Legislation Amendment Bill (No. 1) 2014 contains two measures that accord

with recommendations made in the INSLM’s 2013–14 report because they had earlier been made by the PJCIS. The Government’s announcement of further measures in August 2014 indicates that several key

recommendations will be rejected.9 These instances are noted in the relevant sections below.

The INSLM was established by the Independent National Security Legislation Monitor Act 2010 (INSLM Act). Under subsection 6(1) of the Act, the INSLM has the following functions:

(a) to review, on his or her own initiative, the operation, effectiveness and implications of: (i) Australia’s counter-terrorism and national security legislation; and

(ii) any other law of the Commonwealth to the extent that it relates to Australia’s counter-terrorism and national security legislation;

(b) to consider, on his or her own initiative, whether any legislation mentioned in paragraph (a): (i) contains appropriate safeguards for protecting the rights of individuals; and

(ii) remains proportionate to any threat of terrorism or threat to national security, or both; and (iii) remains necessary;

(c) if a matter relating to counter-terrorism or national security is referred to the Monitor by the Prime Minister—to report on the reference;

(d) to assess whether Australia’s counter-terrorism or national security legislation is being used for matters unrelated to terrorism and national security.10

Section 8 provides that, in performing these functions, the INSLM must have regard to:

 Australia’s obligations under international agreements including those relating to human rights, counter-terrorism and international security and

 arrangements between the Commonwealth, state and territory governments on a national approach to countering terrorism.11

Section 4 provides that the provisions subject to review are:

 Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) (special powers relating to terrorism offences)12

 Part 4 of the Charter of the United Nations Act 1945 (implementing United Nations Security Council decisions on terrorism and dealings with assets)13

 Division 3A of Part IAA (powers in relation to terrorist acts and terrorism offences), section 15AA (bail not to be granted in certain cases), section 19AG (non-parole periods for sentences for certain offences) and Part IC

9. New counter-terrorism measures for a safer Australia, op. cit. 10. INSLM Act, op. cit.

11. Ibid.

12. Australian Security Intelligence Organisation Act 1979 (ASIO Act), accessed 21 July 2014. 13. Charter of the United Nations Act 1945, accessed 21 July 2014.

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(investigation of Commonwealth offences—to the extent that it relates to investigation of terrorism offences) of the Crimes Act 1914 (Crimes Act)14

 Chapter 5 of the Criminal Code (offences relating to the security of the Commonwealth, including treason and urging violence, espionage and similar activities, terrorism, terrorism financing and harming Australians; provisions relating to the proscription of terrorist organisations; control orders and preventative detention orders)15

 Part IIIAAA of the Defence Act 1903 (use of the Australian Defence Force to protect Commonwealth interests and states and territories)16

 any other provision of any of the Acts set out above, as far as it relates to the provisions identified above  the National Security Information (Criminal and Civil Proceedings) Act 2004 and17

 any other Commonwealth law to the extent that it relates to any of the above legislation.18

Bret Walker SC was appointed as the first INSLM and filled the position from April 2011 to April 2014. In that time, four annual reports were produced, three of which contained recommendations for legislative reform.19 In the 2011–12 report, which focused on the control order and preventative detention order regimes, ASIO’s special counter-terrorism powers and the statutory definition of ‘terrorism’, the INSLM made

21 recommendations, key among them:

• repeal of the control order regime (Division 104 of the Criminal Code)

• repeal of the preventative detention order regime (Division 105 of the Criminal Code) and

• repeal of ‘questioning and detention’ warrants (Subdivision C, Division 3, Part III of the ASIO Act), but not the ‘questioning only’ warrants in Subdivision B.20

The Government’s August 2014 announcement of further counter-terrorism measures indicates that these key recommendations will be rejected, with the Government instead introducing amendments to remove or extend the sunset provisions that currently apply to those measures.21

In the 2012–13 report, the INSLM made 30 recommendations in relation to:

• enhancing powers and offences under the Charter of the United Nations Act 1945

• streamlining the listing, designation and proscription of terrorist organisations under the Criminal Code (including a recommendation to replace any listings of parts of such organisations with listings of the whole organisations)

• amending exceptions to offences in the Criminal Code concerning association with terrorist organisations and • amending provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004, including

extending the Act’s application (with appropriate adaptations) to proceedings in all Australian courts and Commonwealth tribunals.22

In the 2013–14 report, the INSLM made 31 recommendations in relation to: • the emergency call-out powers under Part IIIAAA of the Defence Act 1903 • laws concerning Australians engaging in armed conflicts overseas

14. Crimes Act 1914 (Crimes Act), accessed 21 July 2014. 15. Criminal Code Act 1995 (Criminal Code), accessed 21 July 2014. 16. Defence Act 1903, accessed 21 July 2014.

17. National Security Information (Criminal and Civil Proceedings) Act 2004, accessed 21 July 2014. 18. INSLM Act, op. cit.

19. The position of INSLM was vacant at the time of writing. The Government introduced legislation to abolish the position in March 2014, but reversed its decision and withdrew the Bill when it introduced the National Security Legislation Amendment Bill (No. 1) 2014 in July 2014: Parliament of Australia, ‘Independent National Security Legislation Monitor Repeal Bill 2014 homepage’, Australian Parliament website, accessed 21 July 2014. The INSLM’s first annual report identified issues for consideration but did not include any recommendations. 20. B Walker, Declassified annual report, Australian Government Independent National Security Legislation Monitor (INSLM), Canberra,

20 December 2012, accessed 31 July 2014.

21. New counter-terrorism measures for a safer Australia, op. cit.

22. B Walker, Annual report, Australian Government INSLM, Canberra, 7 November 2013, accessed 31 July 2014.

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• laws governing use of foreign evidence in terrorism cases

• passport and citizenship laws, to the extent they are relevant to counter-terrorism, and • several ‘miscellaneous improvements’, some suggested by relevant agencies, including:

– enactment of a delayed notification search warrant scheme for the investigation of terrorism offences and

– consideration of a legislative scheme to protect ASIO officers and human sources from criminal and civil liability for certain conduct in the course of authorised intelligence operations (based on the controlled operations scheme outlined in Part IAB of the Crimes Act for law enforcement purposes).23

The Government’s August 2014 announcement of further counter-terrorism measures indicates that some of the recommendations in the 2013–14 report will be implemented. In particular, legislation will be introduced to enable ASIO to request the suspension of an Australian passport (or foreign passport held by a dual national) in certain circumstances, and to improve the collection and admissibility of evidence gathered overseas.24 While the detail of these proposals was not publicly available at the time of publication, these proposals appear to accord with recommendations V/4 and V/5 and recommendation IV/2 of that report respectively.25

Council of Australian Governments Review of Counter-Terrorism Legislation

Report: tabled in May 2013.

Government response: under consideration.

At a special meeting on terrorism held on 27 September 2005, COAG agreed to strengthen counter-terrorism laws, including through the introduction of control orders and preventative detention orders. It also agreed to review the new laws after five years.26 Initially scheduled to commence in 2010, a committee was not appointed until 9 August 2012.27

The COAG Review Committee was tasked with reviewing the operation, effectiveness and implications of certain Commonwealth, state and territory counter-terrorism laws.28

Commonwealth laws included within the committee’s Terms of Reference were:

• Sections 100.1, 101.2, 101.4, 101.5, 101.6, 102.1, 102.5, 102.6, 102.8, 103.1, 103.2, 103.3, 106.2, 106.3, and Divisions 104 and 105 of the Criminal Code Act 1995 (Cth)

• Section 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) • Sections 3C, 3D and Division 3A of the Crimes Act 1914 (Cth)

• Section 16 of the Financial Transaction Reports Act 1988 (Cth)

• Schedule 1 (dab) and (dac) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The COAG Review report included 44 recommendations relating to Commonwealth laws.29 These included: • amendments to the definition of ‘terrorist act’, including:

– removing ‘threat of action’ from the definition into a separate offence – creating an offence for a hoax threat

– extending what is considered to be ‘harm’ to include psychological harm

23. B Walker, Annual report, Australian Government INSLM, Canberra, 28 March 2014, accessed 31 July 2014. 24. New counter-terrorism measures for a safer Australia, op. cit.

25. Annual report, 2014, op. cit., pp. 34–36, 46–49.

26. Council of Australian Governments (COAG), Communique, special meeting on counter-terrorism, 27 September 2005, accessed 14 July 2014. 27. J Gillard (Prime Minister), COAG to review counter-terrorism legislation, media release, 9 August 2012, accessed 14 July 2014.

28. COAG, ‘About the review’, COAG Review of Counter-Terrorism Legislation website, accessed 14 July 2014. The page contains a link to the complete terms of reference.

29. COAG, Council of Australian Governments review of counter-terrorism legislation, Australian Government, 2013, accessed 31 July 2014. It included a further three recommendations that applied only to state and territory laws.

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– explicit inclusion of hostage-taking in the definition and

– excluding acts committed by parties regulated by the law of armed conflict

• amendments to terrorism, terrorist organisation and terrorism financing offences, including:

– changes to the processes that apply to the proscription of terrorist organisations, including consideration of postponing the commencement of associated regulations until the parliamentary disallowance period has expired and better communication of new listings

– repeal of the offence of associating with a terrorist and

– changes to the offence of financing terrorism and consideration of repeal of the offence of financing a terrorist

• retention of the control order regime, but with significant amendments, including:

– consideration of a system of ‘Special Advocates’ to participate in proceedings relating to control orders – introduction of minimum standards of information to be given to a person subject to a control order – amendments to reduce the severity of some of the conditions that may be applied under a control order

and

– specific provision for the Commonwealth Ombudsman to oversee interim and confirmed control orders • repeal of the preventative detention order regime and

• amendments to stop, search and seizure powers available in relation to terrorism.

The Government’s August 2014 announcement of further counter-terrorism measures indicates that the recommendation to repeal the preventative detention order regime will be rejected, with the Government instead introducing amendments to remove or extend the sunset provision that currently applies.30

Inquiry into Potential Reforms of National Security Legislation

Report: tabled in June 2013.

Government response: legislative amendments addressing recommendations 20–41 (legislation governing the AIC) are contained in the National Security Legislation Amendment Bill (No. 1) 2014. The Attorney-General’s Department’s submission to an inquiry into the Bill includes a table comparing the recommendations (most of which have been implemented) to the provisions of the Bill.31 The remaining recommendations remain under consideration and are currently the subject of a further Parliamentary inquiry.32

In May 2012, the then Attorney-General, Nicola Roxon, asked the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to consider potential national security reforms.33 The Government subsequently released a discussion paper outlining reforms it wished to progress, those it was considering and those on which it expressly sought the views of the PJCIS. The potential reforms related to telecommunications interception and access to telecommunications data; telecommunications sector security; and legislation governing the AIC, particularly ASIO.34

The PJCIS’s report contained 43 recommendations in total, some calling for specific legislative amendments and others suggesting the Government either give further consideration to a particular matter or pursue reforms in a certain way if it chooses to progress them. 35 The PJCIS made 18 recommendations on telecommunications interception and access to telecommunications data, including:

• amendments to the proportionality tests applied under the Telecommunications (Interception and Access)

Act 1979 (TIA Act) when agencies seek access to interception or data

31. Attorney-General’s Department (AGD), Submission to the Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment Bill (No. 1) 2014, July 2014, accessed 30 July 2014.

32. Senate Standing Committee on Legal and Constitutional Affairs, ‘Comprehensive revision of the Telecommunications (Interception and Access) Act 1979’, Australian Parliament website, accessed 30 July 2014.

33. N Roxon (Attorney-General), Public consultation for national security legislation reform, media release, 4 May 2012, accessed 14 July 2014. 34. AGD, Equipping Australia against emerging and evolving threats, Australian Government, July 2012, accessed 14 July 2014.

35. Report of the inquiry into potential reforms of Australia’s national security legislation, op. cit.

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• a review of oversight arrangements applicable to ensuring accountability under the TIA Act

• a review of the threshold for access to telecommunications data with a view to reducing the number of agencies to which access is available on the basis of the gravity of the conduct to be investigated

• amendments to allow interception based on specific attributes of communications, based on the existing ‘named person’ warrants

• a review of the information-sharing provisions in the TIA Act

• streamlining of the TIA Act through development of a single interception warrants regime including recommended safeguards

• a review of the application of interception-related industry assistance obligations, and amendments to clarify and simplify those obligations

• consultation with relevant agencies and industry if the Government decides to develop an offence for failure to assist with decrypting communications or impose timelines on industry assistance to law enforcement and national security agencies and

• comprehensive revision of the TIA Act in order to design an interception regime underpinned by clear protection for the privacy of communications, technology neutral provisions, maintenance of investigative capabilities and robust oversight and accountability.

It made 22 recommendations on legislation governing the AIC, including:

• amendments, or in some instances further consideration of amendments, that would improve the efficacy of ASIO’s computer access warrant regime

• amendments to allow the Attorney-General to vary and renew warrants issued under Division 2 of Part III of the ASIO Act, subject to appropriate accountability and oversight

• amendments to establish an authorised intelligence operations scheme to protect ASIO officers from criminal and civil liability for certain conduct undertaken for the purposes of an operation, to be based on the

controlled operations regime available to law enforcement agencies under the Crimes Act

• further consideration of factors enabling ASIO to seek a single warrant specifying access to multiple powers against a single target, if the Government chooses to proceed with amendments providing for ‘named person’ warrants

• amendments to formalise ASIO’s capacity to cooperate with the private sector

• amendments to provide for the issue of evidentiary certificates to protect the identity of ASIO officers, sources and information about sensitive operational capabilities in court proceedings

• amendments to provide for the application of common standards across agencies, based on those in the ASIO Act, where ASIO is cooperating with the Australian Secret Intelligence Service, Australian Signals Directorate (previously the Defence Signals Directorate) or the Australian Geo-Spatial Intelligence

Organisation (previously the Defence Imagery and Geospatial Organisation), for the authorisation of intrusive activities involving collection of intelligence on an Australian person and

• public and targeted consultation on an exposure draft of amendments relating to the AIC and parliamentary scrutiny of the draft legislation.

It made two recommendations on a potential mandatory data retention regime, specifically that if the Government decides to legislate for a mandatory data retention regime:

• the regime should include certain features (including explicit exclusion of content and Internet browsing data and a maximum retention period of two years), be released as an exposure draft, and the exposure draft referred to the PJCIS for examination and

• the regime should be subject to oversight by the PJCIS and annual reports to Parliament on its operation, and its effectiveness reviewed by the PJCIS after three years.

Finally, the PJCIS recommended that the Telecommunications Act 1997 be amended to provide a telecommunications security framework that includes:

• an industry-wide obligation to protect infrastructure and information from unauthorised interference

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• a requirement to provide information to the Government to assist its assessment of national security risks to telecommunications infrastructure and

• enforcement mechanisms to ensure compliance.

As noted above, the recommendations not addressed in the Bill are currently the subject of a further

Parliamentary inquiry. On 12 December 2013, the Senate referred the following matter to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report:

Comprehensive revision of the Telecommunications (Interception and Access) Act 1979 (the Act), with regard to: a. the recommendations of the Australian Law Reform Commission For Your Information: Australian Privacy Law

and Practice report, dated May 2008, particularly recommendation 71.2; and

b. recommendations relating to the Act from the Parliamentary Joint Committee on Intelligence and Security Inquiry into the potential reforms of Australia’s National Security Legislation report, dated May 2013.36 The Committee is due to report by 27 August 2014.

Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995

Report: tabled in September 2007.

Government response: a response was provided in 2008 that supported five recommendations in full and one in part, and noted one recommendation.37

The Criminal Code Amendment (Terrorist Organisations) Act 2004, which amended the terrorist organisation

listing regime that operates under the Criminal Code, required the PJCIS to review the operation, effectiveness and implications of the provisions and report to Parliament and the Minister as soon as possible after

March 2007.38

The PJCIS tabled its report on 27 September 2007.39 It made seven recommendations relating to the implications and community impacts of proscription, the criteria used to determine listings, procedural issues, the application of strict liability to terrorist organisation offences, and the duration and review of listings.

Security Legislation Review Committee

Report: tabled in June 2006.

Government response: no formal government response provided. However, the Government commented on each recommendation in a submission to the 2006 PJCIS inquiry outlined below.40

The Security Legislation Review Committee (SLRC), chaired by Simon Sheller QC, was established in

October 2005 in accordance with section 4 of the Security Legislation Amendment (Terrorism) Act 2002 to review the operation, effectiveness and implications of amendments made by that Act and the following legislation: • Suppression of the Financing of Terrorism Act 2002

• Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 • Border Security Legislation Amendment Act 2002

• Telecommunications Interception Legislation Amendment Act 2002 and • Criminal Code Amendment (Terrorism) Act 2003.41

36. ‘Comprehensive revision of the Telecommunications (Interception and Access) Act 1979’, op. cit.

37. Australian Government, ‘Parliamentary Joint Committee on Intelligence and Security Inquiry into the proscription of “terrorist organisations” under the Australian Criminal Code: Government response to recommendations’, Australian Government, December 2008, accessed 30 July 2014.

38. Criminal Code Amendment (Terrorist Organisations) Act 2004, Schedule 1, clause 4, accessed 15 July 2014.

39. PJCIS, Inquiry into the proscription of ‘terrorist organisations’ under the Australian Criminal Code, Parliament of the Commonwealth of Australia, Canberra, September 2007, accessed 15 July 2014

40. Australian Government, Submission to Parliamentary Joint Committee on Intelligence, Review of security and counter terrorism legislation, n.d., p. 10, accessed 17 July 2014.

41. P Ruddock (Attorney-General), Independent committee to review security legislation, media release, 12 October 2005, accessed 15 July 2014;

Security Legislation Amendment (Terrorism) Act 2002, op. cit.

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The SLRC reported to the Attorney-General and the PJCIS in April 2006. The report (the Sheller Review), which included 20 recommendations along with additional findings, was tabled in June 2006.42

Review of Security and Counter Terrorism Legislation

Report: tabled in December 2006.

Government response: a response was provided in 2008 in which the Government supported 13 of the 26 recommendations and did not support five. The remainder were noted, accepted in part or in principle or were to be given further consideration.43 Implementation of some of the recommendations supported in the response did not require legislative amendment. However, in some instances where legislative amendment was required, it did not actually eventuate.44

The PJCIS, which was also statutorily required to review the Security Legislation Amendment (Terrorism) Act

2002, Suppression of the Financing of Terrorism Act 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 and the Border Security Legislation Amendment Act 2002 undertook a separate review

following the SLRC review.45 The PJCIS was required under subsection 4(9) of the Security Legislation

Amendment (Terrorism) Act 2002 to take account of the SLRC review, but was not limited by its content,

recommendations or findings.46

The PJCIS tabled its report in December 2006.47 It contained 26 recommendations, some of which mirrored those of the Sheller Review, others of which either contradicted them or covered separate issues.

Review of Division 3 Part III of the ASIO Act–Questioning and Detention Powers

Report: tabled in November 2005.

Government response: a response was provided in March 2006 in which the Government agreed to six recommendations, agreed in part to a further six and disagreed with the remaining seven.48 This response was implemented through the ASIO Legislation Amendment Act 2006.49

Division 3, Part III of the ASIO Act provides for the issue of questioning warrants and questioning and detention warrants in relation to suspected terrorism offences where other means of collecting the relevant intelligence would be ineffective. The warrants are intended as intelligence gathering and preventative tools, not

investigative tools. As such, a person is questioned on the basis that they can provide information about a potential terrorism offence rather than on suspicion of having committed an offence, and detained on the basis of preventing the person from damaging evidence or alerting someone involved in a terrorism offence to the fact it is being investigated.

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (2003 Act), which

inserted Division 3, Part III into the ASIO Act, provided that the provisions would sunset after three years. It also required the Parliamentary Joint Committee on ASIO, ASIS and DSD (PJC-AAD, now the PJCIS) to review the operation, effectiveness and implications of the amendments made by the 2003 Act six months before the provisions expired. 50

42. Security Legislation Review Committee, Report of the Security Legislation Review Committee, Australian Government, June 2006, accessed 15 July 2014.

43. Australian Government, ‘Parliamentary Joint Committee on Intelligence and Security Review of Security and Counter-Terrorism Legislation: Government response to recommendations’, Australian Government, December 2008, accessed 16 July 2014.

44. Several such instances are outlined in the Appendix to this Research Paper. 45. Intelligence Services Act 2001, paragraph 29(1)(ba), accessed 15 July 2014. 46. Security Legislation Amendment (Terrorism) Act 2002, op. cit.

47. PJCIS, Review of Security and Counter Terrorism Legislation, Parliament of the Commonwealth of Australia, Canberra, December 2006, accessed 15 July 2014.

48. Australian Government, ‘Parliamentary Joint Committee on Intelligence and Security Report on the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979: Government response’ (‘ASIO’s questioning and detention powers: Government response’), Australian Government, March 2006, accessed 18 July 2014.

49. ASIO Legislation Amendment Act 2006, accessed 30 July 2014. For information on the originating Bill, which was passed without amendment, see J Norberry, ASIO Legislation Amendment Bill 2006, Bills digest, 114, 2005–06, Parliamentary Library, Canberra, 2006, accessed

30 July 2014.

50. Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, Schedule 1, clauses 24 and 27D, accessed 16 July 2014.

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The PJC-AAD tabled its report in November 2005.51 The PJC-AAD concluded that the provisions were useful and to date had been used within the bounds of the law and administered in a professional way. However, it considered the laws could be improved and should continue to be subject to a sunset clause. The report contained 19 recommendations, many of which were aimed at improving the clarity of the provisions, accountability mechanisms and legal representation and access to complaints mechanisms.

Comparison of the INSLM and COAG Review recommendations

The INSLM and the COAG Review Committee had different terms of reference, so each examined legislation that was not considered by the other. Of the matters considered by both, the main areas of agreement between the recommendations made by the INSLM and the COAG Review are:

• the abolition of preventative detention orders (a majority recommendation of the COAG Review) • express inclusion of hostage-taking in the definition of ‘terrorist act’ in the Criminal Code

• exclusion of acts committed during an armed conflict governed by international law from the definition of ‘terrorist act’ in the Criminal Code

• repeal of the offence of financing a terrorist in the Criminal Code and

• amending the offence of foreign incursion in the Crimes (Foreign Incursions and Recruitment) Act 1978 (Foreign Incursions Act) to remove the need to prove an intention to engage in hostile activity in a particular foreign State.52

Recommendations of the INSLM and the COAG Review that are in direct conflict are:

• abolition (INSLM) versus retention and amendment (COAG) of the control order regime and

• repeal of two of the exceptions to the offence of associating with terrorist organisations (INSLM) versus repeal of the offence itself (COAG).

The conclusions of the INSLM and the COAG Review on each of these issues are outlined below. A table outlining recommendations made by the INSLM and the COAG Review that accord with or contradict recommendations of earlier reviews, the content of earlier recommendations and information on any relevant government responses is provided in the Appendix.

Preventative detention orders

Preventative detention orders (PDOs) were introduced in the Commonwealth jurisdiction by the Anti-Terrorism

Act (No. 2) 2005.53 The introduction of the Bill for this Act followed on from the London bombings in July 2005

and the subsequent agreement to strengthen counter-terrorism laws reached at the special meeting of COAG in September 2005.

The purpose of the PDO regime in Division 105 of the Criminal Code is to allow a person to be taken into custody for a limited time period in order to either prevent an imminent terrorist act from occurring or preserve

evidence of, or in relation to, a recent terrorist Act.54

A member of the Australian Federal Police (AFP) may apply to a senior member of the AFP for a PDO against a person 16 years of age or older, for an initial period of 24 hours. An order extending the period of detention to 48 hours may only be granted by a judge of a state or territory Supreme Court, a Judge, a former judge who served at least five years as a judge in one or more superior courts, or certain members of the Administrative Appeals Tribunal.55

PDOs were the most controversial aspect of the Anti-Terrorism Bill (No. 2) 2005, with key concerns centred around the adequacy of procedural safeguards (or lack thereof), access to the courts and information on which

51. Parliamentary Joint Committee on ASIO, ASIS and DSD, ASIO’s questioning and detention powers: Review of the operation, effectiveness and implications of Division 3 of Part III in the Australian Security Intelligence Organisation Act 1979, Parliament of the Commonwealth of Australia, Canberra, November 2005, accessed 16 July 2014.

52. Crimes (Foreign Incursions and Recruitment) Act 1978 (Foreign Incursions Act), accessed 18 July 2014.

53. Anti-Terrorism Act (No. 2) 2005, op. cit., Part 2 of Schedule 4.

54. Criminal Code, op. cit., section 105.1.

55. Ibid., section 105.2 and Subdivision B of Division 105.

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the PDO is based, conditions of detention and standards of treatment, discretion to prohibit contact with the outside world and restrictions on access to lawyers.56

As at 30 June 2013, no Commonwealth PDOs had been made (and the INSLM’s 2011–12 states that there had been no instances where seeking a PDO had even been seriously considered).57 The South Australian

Government’s submission to the COAG Review stated that none of the states had made use of their PDO legislation either.58

Review recommendations

The INSLM recommended repealing Division 105 of the Criminal Code on the basis that:

• as was the case at the time the PDO regime was introduced, it remained the case that no reason had been provided as to why existing powers such as arrest are not sufficient, particularly given the early stage of offending that is captured by the terrorism offences

• discussions with the AFP ‘strongly suggested that “in a real, practical, urgent sense” the ability to arrest a person is a more efficient and effective process for dealing with imminent terrorist threats than the complex and time consuming process of a PDO’ and

• because a person detained under a PDO cannot be questioned by police or ASIO, even on a voluntary basis, opportunities to gain valuable information and further lines of inquiry are lost.59

The COAG Review recommended, by majority, the repeal of Commonwealth and state and territory PDO regimes. The report notes the suggestion of James Renwick SC that the availability and use of PDO laws ‘may have saved lives, and protected the public in the London bombing situation; or at least it may have preserved evidence and assisted investigation more effectively’.60 It also notes that arrest without reasonable prospects of conviction could expose police to significant criticism. However, the majority of the Review Committee was persuaded ‘by a singular and compelling feature revealed’ in submissions it received—namely that evidence from Victorian, South Australian and Western Australian police services ‘unequivocally suggested that, from an operational perspective, they would be unlikely to use the preventative detention regime’.61

The Government’s August 2014 announcement of further measures indicates that these recommendations to repeal the preventative detention order regime will be rejected, with the Government instead introducing amendments to remove or extend the sunset provision that currently applies.62

Hostage-taking

The INSLM and the COAG Review Committee both considered that while hostage-taking could be argued to fall within the existing definition of ‘terrorist act’ in section 100.1 of the Criminal Code, its importance was such that it should be expressly included. The INSLM noted that this would accord with international practice, including several conventions on terrorism and the inclusion of hostage-taking for terrorist purposes in a model definition of terrorism prepared by a former United Nations Special Rapporteur.63

56. For further details of the legislation and concerns raised at the time, see: S Harris Rimmer, A Palmer, A Martyn, J Davidson, R Jordan and M Coombs, Anti-Terrorism Bill (No. 2) 2005, Bills digest, 64, 2005–06, Parliamentary Library, Canberra, 18 November 2005; S Harris Rimmer and N Brew, Proposals to further strengthen Australia’s counter-terrorism laws 2005, E-Brief, Parliamentary Library, Canberra, updated 25 November 2005; Senate Standing Committee on Legal and Constitutional Affairs, Provisions of the Anti-Terrorism Bill (No. 2) 2005, The Senate, Canberra, 28 November 2005 (all accessed 21 July 2014).

57. Declassified annual report, 2012, op. cit, p. 45; Australian Government, Control orders and preventative detention orders: annual report 2012–13, Commonwealth of Australia, 2013, accessed 16 July 2014. The 2013–14 annual report was not yet available as at the time of publication.

58. South Australian Government and Police, quoted in Council of Australian Governments review of counter-terrorism legislation, op. cit., p. 70. 59. Declassified annual report, 2012, op. cit., pp. 45–67 (quote taken from p. 56).

60. Council of Australian Governments review of counter-terrorism legislation, op. cit., p. 69. 61. Ibid., pp. 68–71 (quotes taken from p. 69).

62. New counter-terrorism measures for a safer Australia, op. cit. 63. Ibid., pp. 9–10; Declassified annual report, 2012, op. cit., pp. 120–122.

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Acts committed in an armed conflict

In its December 2006 report, the PJCIS recommended that ‘to remove doubt the definition of terrorism be amended to include a provision or a note that expressly excludes conduct regulated by the law of armed conflict’.64

The Rudd Government’s December 2008 response to that report did not support this recommendation, stating: Acts of terrorism may still occur during armed conflict; therefore the unqualified exclusion of armed conflict will

encourage misapplication of the principles of public international law. The express exclusion of conduct regulated by the law of armed conflict from the definition of terrorist act would neither add to nor detract from Australia’s international obligations and is unlikely to add clarity to the operation of relevant Criminal Code provisions.65 The COAG Review Committee considered that response but was not persuaded by it. It countered that the proper avenue for prosecution of crimes committed in the context of an armed conflict to be the war crimes offences in Division 268 of the Criminal Code.66 Accordingly, it recommended that ‘consideration be given to incorporating in the legislation an amendment to the effect that Part 5.3 of the Criminal Code will not apply to acts committed by parties regulated by the law of armed conflict’.67

The INSLM considered that Australia should not criminalise under domestic law acts that are lawful under international humanitarian law, and also that acts that are unlawful under international humanitarian law should be excluded from the definition and treated as such, instead of as acts of terrorism. He suggested provisions in Canada’s Criminal Code as an ‘excellent model’ to be used for appropriate amendments.68

Offence of financing a terrorist

The offence of financing terrorism was inserted into the Criminal Code in 2002.69 In 2005, an additional offence of financing a terrorist was enacted.70 It is similar to the financing terrorism offence but applies where a person collects funds for, or makes them available to, another person, reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act.

The COAG Review Committee and the INSLM recommended repealing the offence of financing a terrorist for the same reason, namely that the conduct it is designed to capture is already captured, to the extent that it should be, under the offence of financing terrorism under subsection 103.1.71

The COAG Review notes that the additional offence of financing a terrorist was inserted to address criticism from the international Financial Action Task Force (FATF) in 2005.72 However, the COAG Review Committee and the INSLM both accept the Gilbert + Tobin Centre for Public Law’s argument that the FATF was incorrect, that the offence of financing a terrorist is narrower than the financing terrorism offence, and that there is a strong likelihood that the latter offence would capture situations in which funds are made available to an individual terrorist.73

Foreign incursion offence

Under subsection 6(1) of the Foreign Incursions Act, it is an offence for a person to (emphasis added): (a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or

64. Review of Security and Counter Terrorism Legislation, op. cit., pp. 63–65 (quote taken from p. 65).

65. Australian Government, ‘Parliamentary Joint Committee on Intelligence and Security Review of security and counter-terrorism legislation: Government response to recommendations’, op. cit.

66. Council of Australian Governments review of counter-terrorism legislation, op. cit., pp. 10–11. 67. Ibid., p. 10.

68. Declassified annual report, 2012, op. cit., pp. 122–4 (quote taken from p. 123).

69. Suppression of the Financing of Terrorism Act 2002, op. cit., Schedule 1, clause 2 (section 103.1 of the Criminal Code).

70. Anti-Terrorism Act (No. 2) 2005, op. cit., Schedule 3 (section 103.2 of the Criminal Code).

71. Annual report, 2013, op. cit., pp. 75–6; Council of Australian Governments review of counter-terrorism legislation, op. cit., pp. 38–40. 72. The FATF considered the offence of financing terrorism to be largely but not entirely compliant with recommendation II of its Special

Recommendations on Terrorist Financing because it does not specifically address collection or provision of funds for an individual terrorist: Financial Action Task Force (FATF), Third mutual evaluation report on anti-money laundering and combating the financing of terrorism:

Australia, FATF and Organisation for Economic Co-operation and Development, Paris, 14 October 2005, pp. 32–33.

73. Ibid.

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(b) engage in a hostile activity in a foreign State.74

The offence applies if the person was an Australian citizen or resident at the time, or if the person was present in Australia before engaging in the relevant act and their presence in Australia was for a purpose connected with the act.75

Section 7 provides that it is an offence to engage in certain preparatory activities with the intention of committing an offence against section 6.76

In its submission to the COAG Review, the AFP raised concerns that subsection 6(1) as currently drafted would require the prosecution to prove not just that a person intended to engage in a hostile activity in a foreign State (as defined in subsection 6(3)), but that a person had intended to engage in hostile activity in a particular foreign State. It argued that this may not always be possible in the contemporary environment:

The AFP has observed that an increasing number of Australians are travelling overseas with the intention to engage in hostile activity. In such cases, individuals may have a general desire or intention to fight for a 'cause', but are not concerned with (nor have they turned their mind to) the country in which that fighting might occur. That is, the person travels to State X with the intention of engaging in hostile activity somewhere (but not necessarily State X, or even State Y).77

In light of the desirability of Australian authorities being able to intervene before a person departs Australia and the particular application of the difficulty identified by the AFP in gathering evidence of a preparatory offence, the COAG Review Committee was persuaded of the need for ‘an amendment to subsection 6(1)(a) to remove the need to prove an intention to engage in hostile activity in a particular foreign State’.78

The INSLM noted the COAG Review recommendation and the inadequacy of the current offence when considering the proximity, for example, of Turkey, Lebanon and Iraq to Syria. The INSLM supported the COAG Review’s recommendation and noted the need for the inclusion of equivalent amendments to subsection 6(3) to address the issue.79

Control orders

Control orders (COs) were introduced by the Anti-Terrorism Act (No. 2) 2005.80 The purpose of the CO regime in Division 104 of the Criminal Code is ‘to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act’.81

A senior AFP member may seek the Attorney-General’s written consent to request an interim control order if he or she:

• considers on reasonable grounds that the order in the terms to be requested would substantially assist in preventing a terrorist act or

• suspects on reasonable grounds that the person has provided training to, or received training from, a terrorist organisation listed under the Criminal Code Regulations 2002.82

Following consent from the Attorney-General, an application for a control order may be made to an issuing court. An interim control order may be made that imposes one or more of the following obligations, prohibitions and restrictions, as set out in subsection 104.5(3):

(a) a prohibition or restriction on the person being at specified areas or places; (b) a prohibition or restriction on the person leaving Australia;

74. Foreign Incursions Act, op. cit. 75. Ibid., subsection 6(2). 76. Ibid.

77. Australian Federal Police, Submission to Council of Australian Governments review of counter-terrorism legislation, October 2012, accessed 18 July 2014.

78. Council of Australian Governments review of counter-terrorism legislation, op. cit., p. 77. 79. Annual report, 2014, op. cit., pp. 13–14 (pp. 18–19 of hard copy report).

80. Anti-Terrorism Act (No. 2) 2005, op. cit., Part 1 of Schedule 4.

81. Criminal Code, op. cit., section 104.1.

82. Ibid., subsection 104.2(2); Criminal Code Regulations 2002, accessed 21 July 2014.

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(c) a requirement that the person remain at specified premises between specified times each day, or on specified days;

(d) a requirement that the person wear a tracking device;

(e) a prohibition or restriction on the person communicating or associating with specified individuals; (f) a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet);

(g) a prohibition or restriction on the person possessing or using specified articles or substances;

(h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);

(i) a requirement that the person report to specified persons at specified times and places; (j) a requirement that the person allow himself or herself to be photographed;

(k) a requirement that the person allow impressions of his or her fingerprints to be taken; (l) a requirement that the person participate in specified counselling or education.83

The interim control order must specify a day on which the person may attend the court so it can confirm or revoke the order, or declare it to be void.84 Control orders may be varied and can remain in force for up to 12 months.85

Along with PDOs, the CO regime was one of the more controversial aspects of the legislation. Some of the key issues concerned the impact of the procedures for ex parte interim COs on the principles of natural justice and procedural fairness, the breadth of the threshold for the issue of COs, the adequacy of procedures to ensure a fair hearing and the inclusion of a criminal offence for breaching a CO.86

When the INSLM examined the use of COs, the AFP had considered them in relation to 25 individuals. They had been applied for and issued only in relation to two individuals—Jack Thomas and David Hicks. Both cases are detailed in the INSLM’s 2011–12 report.87

INSLM recommendation and rationale

The INSLM recommended repeal of Division 104 on the basis:

• that COs appear to be less effective and present poorer value for money than surveillance and other investigatory techniques

• of the ‘practically complete’ convergence between the ‘kind and cogency of evidence’ required to support an application for a CO and to justify the laying of charges, particularly given the early stage of offending

captured by the terrorism offences (additionally, courts have shown that they are prepared to hand down significant sentences to those convicted of preparatory offences)

• that, based on United Kingdom experience, they are not effective as a preventative mechanism

• of arguments against their use in most of the circumstances in which they might be sought, specifically: – on the basis of UK experience, using a CO against a person pre-charge can have a negative impact on the

investigation

83. Criminal Code, op. cit. 84. Ibid., paragraph 104.5(1)(e).

85. Ibid., section 104.20 and paragraphs 104.5(1)(f) and 104.16(1)(d).

86. For further details of the legislation and concerns raised at the time, see the references included in footnote 56.

87. Declassified annual report, 2012, op. cit., pp. 12–25. See also Council of Australian Governments review of counter-terrorism legislation, op. cit., pp. 46–48.

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– using a CO against a person who is not being prosecuted because there is insufficient evidence to support

a prosecution presents fundamental difficulties (‘There is no proper need for another route to official

restraints on a person’s liberty where the case against a person may be arguably considered weak’) and – there are philosophical problems with use of a CO against a person against whom there is enough

evidence, but where there are legitimate concerns about the disclosure of sensitive information that

preclude prosecution, given their ‘quasi-punitive’ effect.88

The INSLM did consider, however, that ‘Fardon type’ provisions enabling restraints on liberty to prevent

recidivism after the expiry of a sentence are justifiable in some circumstances.89 The INSLM is referring to orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which the High Court upheld in 2004 as constitutional in Fardon v Attorney-General (Qld).90 The Act allows a court, if satisfied a prisoner released from custody would otherwise be a serious danger to the community, to order that the prisoner be detained in custody indefinitely for control, care or treatment or that the prisoner be released subject to requirements set out in the order.

The INSLM stated:

Proof of terrorist crime plus proven dangerousness would be much less disturbing of the principle of legality than the latter without the former. And susceptibility to this future supplement to sentence could be seen as fitting the deserts of terrorist convicts. Their established guilt of offences with the defining characteristics of terrorism, including its motivations, amounts to a badge of dangerousness to society. Those who can be shown at the end of their (usually rather long) sentences of imprisonment to have resisted CVE [countering violent extremism] attempts or to have failed to show rehabilitation easily fit a Fardon model. That is, they are the very type of convict – not just suspect – against whom restraints after expiry of sentence are justifiable.91

The INSLM recommended that following repeal of Division 104, consideration be given to replacing control orders with ‘Fardon type provisions authorizing COs against terrorist convicts who are shown to have been unsatisfactory with respect to rehabilitation and continued dangerousness’.92 The INSLM confirmed this position in the 2013–14 annual report and made a further recommendation that a scheme for registration and

management of convicted terrorists following their release from prison, modelled on the existing Australian National Child Offender Register, be enacted.93

COAG Review recommendation and rationale

The COAG Review Committee took a different view and recommended that Division 104 be retained, but with additional safeguards and protections included (it made 11 recommendations on what these should be), stating ‘the present safeguards are inadequate and … substantial change should be made to provide greater safeguards against abuse and, in particular, to ensure that a fair hearing is held’.94

One factor that seems to have influenced the different recommendation of the COAG Review Committee is the weight it accorded a submission from, and discussions with, the AFP (and possibly other agencies). The report includes the following quote from the AFP submission:

The AFP considers that control orders remain a necessary and proportionate preventative measure and form an important part of the counter-terrorism toolkit. The removal of the control order regime would create a substantial vacuum in counterterrorism options, reducing the tools available to police to respond to the evolving trends of terrorist planning and modes of attack and increase the risk to community safety.95

The COAG Review Committee recognised and considered arguments against retention of the CO regime made in submissions it received. It also accepted that aspects of the two COs that have been made were problematic.

88. Ibid., pp. 26–44 (quotes taken from pp. 30, 31 and 33). 89. Ibid., p. 37.

90. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), accessed 17 July 2014; Fardon v Attorney-General (Qld) (2004) 223 CLR 575. See also

http://www.austlii.edu.au/au/cases/cth/HCA/2004/46.html, accessed 17 July 2014. 91. Declassified annual report, 2012, op. cit., p. 37.

92. Ibid., p. 44.

93. Annual report, 2013, op. cit., pp. 67–71.

94. Council of Australian Governments review of counter-terrorism legislation, op. cit., pp. 54–63 (quote taken from p. 54). 95. AFP, quoted in ibid., p. 53.

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Among the points made to the COAG Review Committee were that the three circumstances the UK designed its CO regime (on which Australia’s is based) to overcome did not (and do not) exist in Australia. However, it considered that those obstacles did not tell the whole story:

The real thrust of the UK control order system was the inability, for whatever reason, to prosecute the person who posed a terrorism risk in the community. That, as we see it, is essentially the same basis that underlines and frames the Australian legislation. That is, there is, other than by way of criminal prosecution, a need to protect the community from attack and prevent the carrying out of a terrorist act on these shores.96

Unlike the INSLM, the COAG Review Committee considered COs are appropriate not just for those who have been convicted, but also:

• where a prosecution is not a feasible or possible alternative

– ‘it must be recognised that prosecution, although a clear first choice, cannot always suffice as a single antidote to terrorism risk’ and

• ‘where a person has been acquitted of a terrorist offence on a purely technical ground, or where the intelligence/evidence pointing to terrorist activity has been rejected otherwise than on the merits’ – it accepted this category is ‘highly contentious’ but considered that in an ‘exceptional and possibly rare

case’ it could be justified.97

Government response

The Government’s August 2014 announcement of further counter-terrorism measures indicates that the control order regime will be retained, but does not make clear whether the changes to the regime recommended by the COAG Review Committee will be taken up.98

Offence of associating with terrorist groups

The offence of associating with terrorist organisations was inserted into the Criminal Code by the Anti-terrorism

Act (No. 2) 2004.99 Much of the evidence received by the Senate Standing Committee on Legal and

Constitutional Affairs (L&C Committee) during its inquiry into the originating Bill related to the proposed offence. In its report, the L&C Committee stated that all who commented on the offence expressed serious concerns and strong opposition, except for the AFP.100 As outlined in the L&C Committee’s report on the Bill, those concerns related to:

• the breadth of the offence and associated definitions, and potential impacts on the right to freedom of association, implied freedom of political communication and other rights

• the narrowness of the exceptions and

• the interaction with other legislation such as that regulating bail and non-parole periods for terrorism offences.101

The L&C Committee stated:

The evidence does not persuade the Committee of the need for the offence in the first place, given the already wide ambit of terrorism offences under current law in Australia, the breadth of the definition of 'terrorist organisation' contained in the Criminal Code, and other existing laws such as the law of conspiracy and accessory liability.102

It went on to make six recommendations in relation to the association offence, two of which were addressed through amendments.103

96. Council of Australian Governments review of counter-terrorism legislation, op. cit., p. 56. 97. Ibid., p. 55.

99. Anti-terrorism Act (No. 2) 2004, Schedule 3, accessed 17 July 2014 (section 102.8 of the Criminal Code).

100. Senate Standing Committee on Legal and Constitutional Affairs, Provisions of the Anti-terrorism Bill (No. 2) 2004, The Senate, Canberra, August 2004, p. 17, accessed 17 July 2014.

101. Ibid., pp. 17–33. 102. Ibid., p. 33.

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Previous recommendations

The Sheller Review recommended the association offence be repealed. The SLRC considered that the offence denies the right to freedom of association and lacks clarity to the extent that the actual scope of the offence could only be determined by a challenge to its constitutionality (due to subsection 102.8(6), which provides that the offence ‘does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication’).104

In its submission to the PJCIS’s 2006 inquiry, the Government stated the following in relation to the Sheller Review recommendation:

The Government does not support this recommendation. The Government considers that there is no justification for removing the offence nor is there evidence that the offence is being misused to capture legitimate activities. The Government does, however, consider that the fault elements could be clarified, first by applying strict liability to the question of whether the organisation is a proscribed or listed organisation and secondly by introducing a new offence that the person was reckless as to the nature of the organisation.105

The PJCIS shared the concerns of the Sheller Review, and recommended that the offence be re-examined, taking into account the recommendation of the earlier review.106

The Government’s December 2008 response to the PJCIS report supported its recommendation:

The Government supports recommendation 19. The Government will refer the matter for examination by the new National Security Legislation Monitor once appointed.107

COAG and INSLM recommendations

The majority of the COAG Review Committee was persuaded by submissions it received (in particular from the Human Rights Law Centre, Gilbert + Tobin Centre for Public Law and the Law Council of Australia) that the offence should be repealed:

136. The majority of the Committee has significant problems with the very existence of the association offence in section 102.8 … The majority of the Committee is persuaded by the submissions received, however, that section 102.8 contributes little and poses too great a risk to fundamental human rights and freedoms to meet the test of proportionality in legislation and, accordingly, recommends its repeal.

137. Fundamentally, the criminalisation of mere association is a troubling concept. It is perfectly plain that, where mere association transmutes into an action or actions in preparation for a terrorist act (with the need to prove the statutory intentions and purposes inherent in that legislative phrase), prosecution will be an appropriate

consideration. But the mere fact of association (as opposed to membership or ‘expanded’ membership) is too slender a reed to bear the burden of criminal liability.

… there can be little doubt that enforcement agencies (and the Government) see some value in a provision of this kind intended to curtail radicalisation and dilute local support for terrorist organisations. There is no empirical evidence, however, to demonstrate that the presence of the association offence has had either of these effects. At the same time, there is no empirical evidence to show that the mere presence of the offence has offended Muslim sensibilities, at least to any significant extent. Ultimately, however, the majority consider that the section is neither necessary nor effective …108

103. Ibid., p. 34; I McDonald, ‘In Committee: Anti-terrorism Bill (No. 2) 2004’, Senate, Debates, 12 August 2004, pp. 26501–2, accessed 17 July 2014 (recommendations four and seven of the Committee’s report).

104. Report of the Security Legislation Review Committee, op. cit., pp. pp. 127–133.

105. Australian Government, Submission to Parliamentary Joint Committee on Intelligence, Review of security and counter terrorism legislation, op. cit.

106. Review of security and counter terrorism legislation, op. cit., pp. 79–81.

107. ‘Parliamentary Joint Committee on Intelligence and Security Review of security and counter-terrorism legislation: Government response to recommendations’, op. cit.

108. Council of Australian Governments review of counter-terrorism legislation, op. cit., p. 37.

Counter-terrorism and national security legislation reviews: a comparative overview